IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Welfare of

C.H-K.,

No. 47783-1-II

Minor Child,

T.K. and I.H.,

Appellants, UNPUBLISHED OPINION

v.

DEPARTMENT OF SOCIAL AND HEALTH 

SERVICES,

Respondent.

JOHANSON, J. — IH and TK, both of whom have cognitive disorders that affect their 

ability to parent, appeal the juvenile court’s order terminating their parental rights to CH-K.1 They 

argue that the juvenile court erred in finding that clear, cogent, and convincing evidence supported 

its termination order. IH also argues that the juvenile court violated her due process rights. We 

disagree and hold that substantial evidence supports the juvenile court’s findings and that IH’s due 

process rights were not violated. Accordingly, we affirm. 

 

1 To provide some confidentiality, we use the minors’ and their family members’ initials in the 

case caption and in the body of the opinion. 

Filed

Washington State

Court of Appeals

Division Two

October 18, 2016
No. 47783-1-II

2

FACTS

I. BACKGROUND2

IH and TK have five children. Between 2009 and 2012, the parents’ three older children 

were declared dependent on the State and the parents participated in court-ordered services. The 

parents’ rights to these children were terminated in 2013. 

In July 2012, CH-K was born. In October 2012, CH-K was declared dependent. In 

November 2013, CH-K’s younger brother, AH-K, was born and since February 2014, AH-K was 

placed in in-home dependency. During CH-K’s and AH-K’s dependencies, the parents were 

provided with a Safe Care referral, mental health counseling, multiple rounds of counseling from 

Family Preservation Services, and Home Builders’

3

30-day intensive in-home coaching. TK and 

IH were each provided a parent mentor. 

Safe Care is a hands-on parenting education coaching program offered in the home setting 

and is designed to increase understanding of safety hazards, health and safety issues, and how to 

foster positive parent-child interactions. Typically, Safe Care is offered once a week for 40 

minutes to an hour for 18 to 22 weeks. The juvenile court found that the failure to use a video 

component did not invalidate the Safe Care’s service. Safe Care uses a variety of instructional 

approaches and the juvenile court concluded it was just the sort of adapted service appropriate for 

TK and IH. 

 

2 We rely primarily on the juvenile court’s findings of fact following the bench trial. 

3 Home Builders is an intensive, in-home service addressing the same issues as Safe Care but is 

offered for 10 hours per week or more for one month or more. 
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The parents received many services that were adequately adapted to address their learning 

disabilities. Although many providers appropriately tailored services and provided information 

and tools in a variety of ways and through a variety of modes, the parents were unable to make 

long-term, sustained improvement. IH and TK received supervised visits for up to 37 hours per 

week including overnight supervised visits. 

II. PARENTAL DEFICIENCIES

A. IH

During the dependency, it was established that IH suffers from a cognitive disorder 

affecting her attention, concentration, sequencing, and executive functioning. She was diagnosed 

as borderline intellectually disabled, with mixed personality disorder with dependent, avoidant, 

and schizoid features and with mild paranoia. IH has difficulty learning and remembering new 

parenting skills and does not understand children’s normal or typical developmental stages and 

needs. IH often lacks empathy and expresses rigid ideas about how children should act. She has 

weak nurturing skills and lacks flexibility in dealing with children’s behaviors. This led to harsh 

criticism of the children and damaging actions towards them. Service providers observed that IH 

also did not always accurately perceive what occurred, which affected her parenting. 

For example, IH persisted in using a shower spray nozzle to quickly bathe CH-K even 

though it caused CH-K anxiety. She also blamed CH-K and spoke harshly to CH-K for normal 

behavior like spilling drinks or wetting her pants. 

B. TK

During the dependency it was also established that TK has cognitive disorders that impair 

his ability for executive decision making, his ability to prioritize, and his ability to understand 
No. 47783-1-II

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consequences. TK has a paranoid personality, shows limited ability to process basic information, 

and has a lack of knowledge of general principles of child rearing and basic developmental 

concepts. TK’s disorders and cognitive limits negatively impacted his parenting. He was rigid in 

his approach to CH-K and to IH. He did not communicate effectively with IH or with service 

providers. TK was compromised in his ability to manage stress, anger, and to deal with anxiety. 

TK also lacked personal insight in regard to his and IH’s limitations that place CH-K’s safety and 

healthy development at risk. 

C. HOME CONDITIONS AND PARENTING ARRANGEMENT 

Service providers found the home environment posed a risk to CH-K. The cluttered home 

created tripping hazards, fall hazards, and restricted the normal movement of CH-K within and 

outside the home. TK and IH had numerous cats in the home—more than five at a time—that 

created an unsanitary environment for the children. The Department of Social and Health Services 

(DSHS) worked with TK and IH to address the risks posed by the home environment and offered 

services to address the issues. Although at times the home environment improved, the conditions 

recurred. TK and IH failed to recognize that the home conditions interfered with child 

development and posed a significant safety risk. 

This safety risk heightened when IH had to care for more than one child, as she was not 

capable of the focus necessary to keep multiple children safe in the home environment. In 2014

and 2015, TK began spending more time at home with IH and AH-K and with CH-K during her 

visits. TK was higher functioning than IH and his presence mitigated some of her deficiencies, 

but TK failed to acknowledge IH’s deficiencies. TK and IH did not communicate well with each 
No. 47783-1-II

5

other, which negatively impacted their parenting. If CH-K and AH-K had been returned to their 

care, TK’s plan was to work outside the home with IH as the primary caretaker. 

III. TERMINATION FACT FINDING

On March 15, 2013, DSHS filed a petition to terminate IH and TK’s parental rights to CHK. The termination trial was continued five times between 2013 and 2015. In March 2015, the 

fact-finding hearing was held. CH-K was three years old at the time of trial. Several service 

providers who worked with TK and IH between 2010 and 2015 testified. Seven of those service 

providers testified that TK and IH were not capable of remedying their parental deficits and could 

not adequately provide care for CH-K in the foreseeable future. 

On June 25, 2015, the juvenile court ordered termination of TK and IH’s parental rights to 

CH-K. Based on its findings, the juvenile court concluded that the elements of RCW 

13.34.180(1)(a) through (f) had been established by clear, cogent, and convincing evidence. The

juvenile court also concluded that the State established that the mother and father were currently 

unfit and unable to parent and that termination of the mother and father’s parental rights was in 

CH-K’s best interest. 

ANALYSIS

I. SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS 

A. STANDARD OF REVIEW AND RULES OF LAW

The juvenile court may order termination of a parent’s rights if DSHS establishes the six 

elements in RCW 13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence. RCW 

13.34.190(1)(a)(i). “Clear, cogent and convincing evidence exists when the evidence shows the 

ultimate fact at issue to be highly probable.” In re Dependency of K.S.C., 137 Wn.2d 918, 925, 
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976 P.2d 113 (1999). In addition to the statutory elements of RCW 13.34.180(1), due process 

protections require that a court make a finding of unfitness before parental rights can be terminated. 

In re Dependency of K.R., 128 Wn.2d 129, 142, 904 P.2d 1132 (1995). This finding does not need 

to be made explicitly because satisfying all of the statutory elements raises an implied finding of 

parental unfitness. In re Dependency of K.N.J., 171 Wn.2d 568, 577, 257 P.3d 522 (2011). DSHS 

also must prove by a preponderance of the evidence that termination of parental rights is in the 

child’s best interests. RCW 13.34.190(1)(b).

We uphold the juvenile court’s factual findings if those findings are supported by 

substantial evidence. In re Parental Rights to M.J., 187 Wn. App. 399, 406, 348 P.3d 1265 (2015). 

Where a party is required to establish its case by “‘clear, cogent, and convincing evidence,’” we 

incorporate that standard of proof into our review. In re Dependency of P.D., 58 Wn. App. 18, 25, 

792 P.2d 159 (1990) (quoting RCW 13.34.190). Thus, the question to be resolved is not merely 

whether there is substantial evidence to support findings but whether there is substantial evidence 

in light of the “highly probable” test. In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 

(1973). Because the juvenile court has the advantage of observing the witnesses, deference to the

juvenile court is particularly important in termination proceedings. K.S.C., 137 Wn.2d at 925. We 

do not review credibility determinations or weigh the evidence. In re Welfare of A.G., 155 Wn. 

App. 578, 588, 229 P.3d 935, remanded, 169 Wn.2d 1032 (2010). 
No. 47783-1-II

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B. SUBSTANTIAL EVIDENCE THAT ALL NECESSARY SERVICES PROVIDED

1. DSHS TAILORED SERVICES TO MEET PARENTS’ NEEDS

Both TK and IH argue that the juvenile court’s finding that all necessary services were 

appropriately tailored is unsupported by substantial evidence.4 We disagree. 

Under RCW 13.34.180(1)(d), DSHS must prove “[t]hat the services ordered under RCW 

13.34.136 have been expressly and understandably offered or provided and all necessary services, 

reasonably available, capable of correcting the parental deficiencies within the foreseeable future 

have been expressly and understandably offered or provided.” “Necessary services” are those 

services “needed to address a condition that precludes reunification of the parent and child.” In re 

Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014). 

The Americans with Disabilities Act (ADA) requires public entities to make reasonable 

accommodation for disabled persons, but does not require public entities to provide the disabled 

with services not offered to others. 42 U.S.C. § 12132; In re Welfare of H.S., 94 Wn. App. 511, 

521, 973 P.2d 474 (1999). A termination should be upheld and the ADA is not violated where all 

reasonably available services are provided to the parents, the services were modified by the 

individual providers to accommodate parents’ special needs, and the juvenile court’s finding that 

the best interests of the child were met by termination of parental rights is amply supported by 

clear, cogent, and convincing evidence. In re Welfare of A.J.R., 78 Wn. App. 222, 230, 896 P.2d 

1298 (1995); see also H.S., 94 Wn. App. at 521.

 

4 The parties do not dispute that the first three elements of RCW 13.34.180(1) were met: (a) CHK was found dependent, (b) the juvenile court entered a dispositional order, and (c) CH-K had

been removed for over six months. RCW 13.34.180(a)-(c). 
No. 47783-1-II

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The juvenile court found that while some providers throughout the years failed to provide 

ideally adapted services, many service providers appropriately tailored their services for TK and 

IH. Brenda Sullens, a parent coach, met with both TK and IH from March 2011 to July 2012 while 

they were trying to parent their three older children. Sullens identified the specific needs of the 

family and tailored her approach based on TK’s and IH’s learning style. Stephen Harding, TK’s 

therapist from January 2012 to June 2012, testified that he had experience working with parents 

with cognitive impairments and that the therapy he provided was appropriate for TK. Laura 

Gustavson, IH’s therapist from May 2011 to January 2012, testified that she was aware of IH’s 

cognitive deficits and accommodated her treatment accordingly. Parenting Protection Group 

instructor Christa Sommerfeld worked with both TK and IH from September 2012 to May 2013.

Sommerfeld testified that she allowed them to progress through the program, despite their inability 

to complete assignments to the program’s specifications, as an accommodation for their 

disabilities. 

From December 2013 until 2015, Denise Johnson, a Child Protective Services (CPS) 

investigation unit supervisor, oversaw TK and IH’s case. Johnson has a degree in education and 

training in working with and designing service plans for parents with developmental delays. 

Johnson spoke to all of TK’s and IH’s service providers when she was on the case and evaluated 

their methods. She instructed the service providers to offer their instructions in multiple forms, 

including in writing, so TK and IH could review the information more than once and seek advice 

about it. Johnson also reviewed a report containing recommendations to DSHS about working 

with adults with developmental disabilities. From this report, Johnson learned that for a family 

like TK and IH’s, it was important to offer hands-on education using different methods that would 
No. 47783-1-II

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allow them to review the material multiple times, to establish trust through openness and 

transparency, and to consider the economic status and support system available to the family. 

Johnson also referred TK and IH to Safe Care for a second time. The Safe Care program 

is designed to increase understanding of child development, home safety and health, and to foster 

positive parent/child interaction. Johnson stated that these were key areas of concern for TK and 

IH and that Safe Care was an appropriate program to meet their needs and increase their skills. 

When AH-K was returned to the home, Johnson also recommended the Home Builders program, 

an intensive family preservation service which provides at least 10 hours a week of support. 

Johnson noted that while typically there are funding challenges associated with offering Home 

Builders and Safe Care at the same time, she accommodated for TK’s and IH’s needs and ensured 

they received both. Johnson also referred them each to a foster parent mentor, and in order to 

serve TK’s and IH’s needs, she requested additional mentorship for each of them so the program 

would extend six months longer than usual. 

Megan Kirshbaum, Ph.D in clinical psychology, testified that Tina Santiago, an in-home 

therapist for Institute for Family Development, worked with the family from September 2012 

through May 2013 and appropriately tailored her services to TK’s and IH’s needs by being 

respectful and using creative, concrete, and varying approaches. Kirshbaum further testified that 

Katie Smigaj, who worked with the family from May to July 2013 and from July to December 

2014, also adapted her work to TK’s and IH’s needs. Smigaj did so by praising strengths and 

combining written and verbal instruction. Kirshbaum also noted that the Safe Care program that 

the family received includes safety scenarios that are appropriate for parents with intellectual 

disabilities. 
No. 47783-1-II

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Thus, substantial evidence supports the juvenile court’s finding that DSHS provided all 

necessary, reasonably available services and that services were appropriately tailored to TK’s and 

IH’s needs. A.J.R., 78 Wn. App. at 230.

2. DSHS WAS NOT REQUIRED TO OFFER ADDITIONAL SERVICES 

TK and IH also argue that DSHS should have provided additional services in order to meet 

the requirements of RCW 13.34.180(1)(d). We disagree. 

DSHS does not have to provide services when the parent is unable or unwilling to make 

use of them. In re Dependency of Ramquist, 52 Wn. App. 854, 861, 765 P.2d 30 (1988). And 

even if DSHS “inexcusably fails” to offer services to a willing parent, termination is still 

appropriate if the services “would not have remedied the parent’s deficiencies in the foreseeable 

future.” In re Dependency of T.R., 108 Wn. App. 149, 164, 29 P.3d 1275 (2001); In re Welfare of 

Hall, 99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983).5

a. VIDEO RECORDED SERVICES

TK argues that he should have been offered video recorded services. The juvenile court 

found there was a misunderstanding regarding whether, after initially refusing to be videotaped, 

TK later consented to video use. But the juvenile court found that failure to use the video 

component in the Safe Care program did not invalidate the service. Safe Care used a variety of 

instructional approaches and was an adapted service appropriate for TK and IH. TK may have 

been willing to participate in a video service through Safe Care or another program. But TK has 

 

5 DSHS’s responsibility is not fulfilled by a mere offer of services. See In re Dependency of D.A.,

124 Wn. App. 644, 653-54, 102 P.3d 847 (2004) (holding that DSHS must follow up if a party 

who once declined services expresses a willingness to participate later and cannot point to the 

efforts of others to seek out or offer certain services where DSHS did not).
No. 47783-1-II

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not shown that the addition of video recorded services would have remedied his parental 

deficiencies in the near future. 

b. ADDITIONAL EVALUATIONS AND MULTIPLE CHILDREN SERVICES

IH argues that DSHS should have offered her a learning style evaluation or services to help 

care for two children.6 But substantial evidence shows that it would have been futile to offer TK 

and IH additional services. DSHS offered IH a parenting evaluation and a neuropsychological 

evaluation with parenting components. IH also received individual counseling, cognitive 

behavioral therapy, and couples’ counseling. Additionally, IH was offered therapy and parent 

coaching during the dependencies of her three older children addressing how to care for multiple 

children at once. 

Substantial evidence supports the finding that despite being offered evaluations and 

multiple services, TK and IH were still unable to make long-term, sustained improvements. The 

service providers who worked with TK and IH from 2011 to 2013 reported that their progress in 

developing parenting skills was stagnant, TK and IH failed to acknowledge their parenting 

deficiencies, and most of the 2013 to 2015 service providers stated that TK and IH could not parent 

two children at once. 

 

6

IH also argues, “The failure to tailor the mother’s services to meet her learning needs violated 

the ADA.” Br. of Appellant at 15. However, the ADA is not violated where all reasonably 

available services are provided to the parents, the services were modified by the individual 

providers to accommodate parents’ special needs, and the juvenile court’s finding that the best 

interests of the child were met by termination of parental rights is amply supported by clear, cogent, 

and convincing evidence. A.J.R., 78 Wn. App. at 230. As shown above, substantial evidence 

shows that services were reasonably tailored to meet the parents’ special needs. And IH does not 

offer analysis or argument based on the ADA; rather, she argues about whether substantial 

evidence supports the finding under RCW 13.34.180(1)(d). For these reasons, her argument fails. 
No. 47783-1-II

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None of the 2013 to 2015 service providers recommended unsupervised visitation; rather, 

they recommended additional services. In 2015, based on comments from the 2013 to 2015 service 

providers and her own evaluations of TK and IH, Johnson testified that IH and TK regressed to 

old ways of thinking or functioning and it would take years before CH-K could be in their care. 

Multiple providers noted that TK’s and IH’s progress was stymied by their refusal to acknowledge 

their parental deficiencies and their belief that DSHS took their children away to profit from the 

adoptions. TK and IH have failed to show that additional evaluations or additional services would 

have remedied the parental deficiencies in the near future. T.R., 108 Wn. App. at 164; Hall, 99 

Wn.2d at 850-51. Thus, substantial evidence supports the juvenile court’s finding that all 

necessary services were expressly and understandably offered. 

C. SUBSTANTIAL EVIDENCE OF LITTLE LIKELIHOOD CONDITIONS WILL BE REMEDIED 

TK and IH argue that the juvenile court’s finding that there was little likelihood that 

conditions could have been remedied to permit CH-K to return home in the near future is 

unsupported by substantial evidence.7 We disagree. 

DSHS must show that there is little likelihood that conditions will be remedied so that the 

child can be returned to the parent in the near future. RCW 13.34.180(1)(e). In determining 

 

7

IH argues also that there was evidence showing that she could overcome parenting issues and 

without provision of properly tailored services, it is impossible to determine if she could have 

parented CH-K in the near future, while TK argues that there was concrete evidence he progressed 

with remedying his deficits. These arguments are best characterized as arguments about the weight 

placed on the evidence. But we do not review credibility determinations or weigh evidence on 

appeal. A.G., 155 Wn. App. at 588. Thus, we do not review the juvenile court’s decision to give

greater or lesser weight to certain evidence. 
No. 47783-1-II

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whether RCW 13.34.180(1)(e) has been met, the focus is on whether parenting deficiencies have 

been corrected. A.G., 155 Wn. App. at 590. 

If DSHS offers or provides all necessary services reasonably capable of correcting 

parenting deficiencies within the foreseeable future and the parent does not substantially improve 

his or her deficiencies within a year of the dispositional order, a rebuttable presumption arises that 

DSHS has sufficiently proven there is little likelihood conditions will be remedied in the near 

future. RCW 13.34.180(1)(e). Once the rebuttable presumption applies, it shifts the burden of 

production to the parent, but DSHS must still convince the juvenile court that it is highly probable 

the parent would not improve in the near future. In re Welfare of C.B., 134 Wn. App. 942, 956, 

143 P.3d 846 (2006). 

Even where evidence shows that a parent may eventually be capable of correcting 

deficiencies, termination is appropriate if those deficiencies will not be corrected in the near future. 

A.G., 155 Wn. App. at 590. A determination of what constitutes “near future” depends on the 

child’s age and the circumstances of the placement. Hall, 99 Wn.2d at 844, 850-51 (finding eight 

months not in the foreseeable future for a four-year-old); see also In re Dependency of A.W., 53 

Wn. App. 22, 24, 32, 765 P.2d 307 (1988) (one year not in near future of three-year-old). The 

juvenile court may consider the parent’s history of parenting and compliance with services to 

determine whether conditions are likely to be remedied in the near future. In re Dependency of 

J.C., 130 Wn.2d 418, 428-29, 924 P.2d 21 (1996).

The juvenile court here found there was little likelihood conditions could be remedied so 

CH-K could be returned to TK’s and IH’s care in the near future. Specifically, the juvenile court 

found that
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[b]oth parents have participated extensively in services for a number of years 

spanning this child’s dependency as well as the dependencies of the parents’ older 

children. Though the parents have, at times, demonstrated the ability to implement 

new parenting skills, the evidence showed that even after repeating services, 

progress by both parents has not been sustained. While there is little evidence of 

imminent risk to the child, the parents are not able to maintain and apply new 

parenting skills in the long-term. 

Clerk’s Papers (CP) at 833. 

1. IH’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES

Substantial evidence supports the juvenile court’s finding that IH was unlikely to remedy 

her deficiencies to parent CH-K. From 2012 to 2015, IH did not consistently progress in her 

services to remedy parental deficiencies and service providers who worked with her during various 

periods from 2011 to 2015 stated that CH-K should not be placed in her sole care. 

Johnson and the mid-2012 to 2014 social worker, Joel Pettit, both testified that IH 

consistently struggled to give CH-K emotional feedback and connection. From October 2013 until 

March 2015, Jody Smetak was IH’s state-provided mental health therapist. Smetak also worked 

with TK and IH together in couples’ sessions. Smetak testified that IH did not acknowledge how 

her parental deficiencies lead to her children’s dependencies, did not relate to CH-K in a 

developmentally appropriate way, bathed CH-K in a traumatic way, and could not focus on CH-K 

and AH-K at the same time. Smetak noted IH regressed or did not progress during treatment. IH 

also told Smetak on more than one occasion that she could not meet the needs of both children at 

the same time. 

Erica Toth, who supervised IH’s visitation before trial from 2014 to 2015, testified that IH 

had difficulty focusing on two children at once, had age-inappropriate conversation and play with 

CH-K, and yelled at CH-K for peeing on the floor. This substantial evidence supports the juvenile 
No. 47783-1-II

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court’s finding that although IH may not have posed an imminent risk to CH-K even after receiving 

services, IH’s progress was not sustained and there was little likelihood that she could remedy her 

parental deficiencies in the near future. 

2. TK’S LIKELIHOOD TO REMEDY PARENTAL DEFICIENCIES

Substantial evidence supports the juvenile court’s finding that TK was unlikely to remedy 

his deficiencies to parent CH-K. TK’s reliance on C.B. to support his argument that substantial

evidence does not support the juvenile court’s finding is unpersuasive. In C.B., this court found a 

mother’s primary parenting deficit was drug and alcohol addiction. 134 Wn. App. at 948. The 

mother entered a treatment program that she almost completed by the time of trial. C.B., 134 Wn. 

App. at 948. While DSHS in C.B. argued that this was not enough progress to show the mother 

would improve conditions within six months to a year, 134 Wn. App. at 958, this court held that

where a parent produces evidence that she has been improving over a four-month 

period after the State files a termination petition but before the termination hearing, 

the State may not rely solely on past performance to prove that it is highly probable 

that there is little likelihood that the parent will be reunited with her children in the 

near future.

134 Wn. App. at 953. 

C.B. is distinguishable from TK’s case. There, the State presented no evidence, other than 

past evidence, and testimony from a social worker that the mother would need to engage in anger 

management, demonstrate ongoing sobriety, and keep a safe, stable home. C.B., 134 Wn. App. at 

956. Here, the juvenile court was presented with substantial, past and recent evidence that T.K.’s 

deficiencies were ongoing and would take more than a year to improve. 

There is a notable difference, too, between parental deficiencies due to drug and alcohol 

addiction as in C.B. and cognitive developmental disabilities as presented here. Michael O’Leary, 
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Ph.D. in clinical and forensic psychology, testified and his evaluation was admitted into evidence. 

O’Leary evaluated both parents in 2010 and opined that because the parents’ deficiencies involve 

developmental, cognitive issues, it is unlikely that they will ever be able to remedy their resulting 

parenting deficits. O’Leary concluded that TK’s inabilities interfere with his ability to learn, 

retain, and implement new parenting behaviors. 

According to service providers and TK’s own testimony, TK failed to acknowledge his 

parental deficiencies that led to his children’s dependencies. O’Leary predicted in 2010 that TK’s 

deficiencies would prevent him from providing his children with a safe, stable home and from 

anticipating hazards. Parent coaches Sullens from 2011 to 2012 and Shaune Putas from 2013 to 

2104 assisted TK with developing parenting skills and cleaning up hazards in the home. But when 

Johnson visited the home a week before trial, the home was even more cluttered and hazardous 

than before. 

Although TK showed more child development awareness than IH, he did not prevent IH 

from engaging in inappropriate behaviors with CH-K in his presence. And while TK decreased 

his work hours before the termination trial to help IH with the children, he planned to return to 

work full time if both CH-K and AH-K were returned to his and IH’s care, leaving IH as the 

primary parent. Several providers who worked with TK between 2011 and 2015 also testified that 

TK was unable to make sustained progress from his services and could not parent two young 

children at once. 

3. REMEDY NOT IN THE NEAR FUTURE

Substantial evidence supports the finding that at the time of dependency, neither TK nor 

IH was likely to remedy their deficiencies in the near future. Johnson testified that as of the time 
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of trial, both TK and IH had regressed to old ways of thinking or functioning and it would take 

“years” before CH-K could be in their care. 9 Report of Proceedings (RP) at 1638. And O’Leary 

predicted in 2010 that because TK’s and IH’s deficiencies are developmental, cognitive issues, it 

is unlikely they will ever be able to remedy their resulting parenting deficits. A year or more is 

not in the near future for a three-year-old—CH-K’s age at the time of trial. A.W., 53 Wn. App. at 

24, 32. We hold that substantial evidence supports the juvenile court’s finding that there was little 

likelihood conditions could be remedied so CH-K could be returned to TK and IH’s care in the 

near future under RCW 13.34.180(1)(e). J.C., 130 Wn.2d at 428.

D. DIMINISHED PROSPECTS FOR EARLY INTEGRATION

IH argues that the juvenile court improperly conflated the best interest factor and a finding 

that termination would help achieve permanent placement in the near future. TK argues that 

evidence before the juvenile court undermined the juvenile court’s finding that he and IH placed 

CH-K into anxiety-inducing settings. We disagree. 

Under RCW 13.34.180(1)(f), DSHS must prove that “continuation of the parent and child 

relationship clearly diminishes the child’s prospects for early integration into a stable and 

permanent home.” DSHS can prove RCW 13.34.180(1)(f) in one of two ways: (1) that prospects 

for a permanent home exist, but the parent-child relationship prevents the child from obtaining that 

placement or (2) that the parent-child relationship has a damaging and destabilizing effect on the 

child that would negatively impact the child’s integration into any permanent and stable home. In 

re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013). 

Under the first method, “[RCW 13.34.180(1)(f)] is mainly concerned with the continued 

effect of the legal relationship between parent and child, as an obstacle to adoption; it is especially 
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a concern where children have potential adoption resources.” In re Dependency of A.C., 123 Wn. 

App. 244, 250, 98 P.3d 89 (2004). Under the second method, the juvenile court considers whether 

the child is emotionally and psychologically prepared to integrate into a stable and permanent 

home should one become available. R.H., 176 Wn. App. at 428 (quoting In re Dependency of 

K.D.S., 176 Wn. 2d 659, 294 P.3d 695 (2013). 

Here, the juvenile court found that

[c]ontinuation of the parent/child relationship clearly diminishes the child’s 

prospects for early integration into a stable and permanent home. [CH-K] has been 

out of the parents’ care for nearly her entire life. During this time, the parents have 

not corrected their deficiencies so that she can be returned to their care. The parents 

have repeatedly put their child into anxiety-inducing and emotionally-distraught 

settings. This child needs permanency and without termination of parental rights, 

the child will not be able to find a permanent home in the near future.

CP at 833. 

First, contrary to IH’s argument, the juvenile court made separate findings regarding RCW 

13.34.180(1)(f) and CH-K’s best interests. The best interest finding includes that “[t]ermination 

will allow [CH-K], as soon as possible, to enter into a stable family relationship where her 

individual needs can be met.” CP at 834. But the inclusion of this language in the best interest 

finding does not mean the juvenile court conflated the best interest and RCW 13.34.180(1)(f) 

analyses: finding of fact 2.25 specifically addresses the juvenile court’s findings in support of 

RCW 13.34.180(1)(f), and the juvenile court’s best interest finding is supported by the juvenile 

court’s eight-page ruling. 

Second, TK’s challenge to the juvenile court’s finding that a continued relationship with 

the parents negatively affected CH-K goes to the weight placed on the evidence. TK argues that 

substantial evidence does not support the finding that TK and IH repeatedly placed CH-K into 
No. 47783-1-II

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anxiety-inducing and emotionally distraught settings where other evidence showed that he was a 

nurturing presence and offset IH’s “less sensitive parenting.” Br. in Supp. of Mot. for Accelerated 

Review at 47. But we do not weigh evidence on appeal. A.G., 155 Wn. App. at 588. 

Third, substantial evidence supports the finding that a continued relationship diminished 

CH-K’s chances for permanent placement. DSHS proved a permanent home was available to CHK, but a continued relationship with IH and TK could prevent her placement there. CH-K was out 

of her parents’ care since birth in 2012 and never had unsupervised visits with her parents. CH-K 

had only one foster home, which was a preadoptive home. Johnson testified that the parental 

relationship between CH-K and her parents affected her ability to integrate into a permanent and 

stable home because CH-K would not be “legally free” to be adopted. 7 RP at 1321. Thus, 

substantial evidence supports a finding that at the time of dependency, the effect of continuing 

CH-K’s legal relationship to her parents was an obstacle to a viable adoption. A.C., 123 Wn. App. 

at 250. 

Substantial evidence also supports a finding that DSHS proved that the parent-child 

relationship had a damaging and destabilizing effect. From 2012 to 2015, TK and IH did not

consistently progress in their services to remedy parental deficiencies and many of the parents’ 

service providers stated that CH-K should not be placed in their sole care. Johnson testified that 

remaining between two home environments stunted CH-K’s development. And Johnson reported 

that while in CH-K’s foster home, CH-K was talking, thriving, and developing at an average rate, 

but when CH-K was with her parents, there was concern she did not talk as much and regressed

emotionally. TK and IH also repeatedly placed CH-K in distressing situations including bathing 

her in a traumatic manner and taking her to an emotional visitation review meeting with DSHS. 
No. 47783-1-II

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Substantial evidence thus supports a finding that a continued dependency may have had a

damaging and destabilizing effect on CH-K’s emotional and psychological state, negatively 

impacting her integration into a stable and permanent home. R.H., 176 Wn. App. at 428. 

E. UNFITNESS TO PARENT

Both TK and IH argue that substantial evidence does not support the juvenile court’s 

findings that they are unfit to parent CH-K. We disagree. 

DSHS must establish by clear, cogent, and convincing evidence that the parent is currently 

unfit. In re Welfare of A.B., 181 Wn. App. 45, 58, 323 P.3d 1062 (2014). To prove current 

unfitness, DSHS must show that the parent’s deficiencies prevent the parent from providing the 

child with “‘basic nurture, health, or safety.’” A.B., 181 Wn. App. at 61 (quoting RCW 13.34.020); 

see also In re Custody of B.M.H., 179 Wn.2d 224, 236, 315 P.3d 470 (2013) (holding a parent is 

unfit “if he or she cannot meet a child’s basic needs”). 

The child’s right to basic nurturing includes the right to a safe, stable, and permanent home 

and a speedy resolution of the dependency proceeding. RCW 13.34.020; In re Dependency of 

J.A.F., 168 Wn. App. 653, 668, 278 P.3d 673 (2012). When the rights of basic nurture, physical 

and mental health, and safety of the child and legal rights of the parent are in conflict, the rights 

and safety of the child should prevail. RCW 13.34.020. If DSHS proves the elements of RCW 

13.34.180(1)(a) through (f) by clear, cogent, and convincing evidence, an implicit finding of 

current parental unfitness may be made. K.N.J., 171 Wn.2d at 577. 

Here, the juvenile court found that 

the parents are not currently fit to parent this child. The parents have failed to 

adequately provide a safe and nurturing environment for this child on a consistent 

and sustained basis. The parents have repeatedly demonstrated an inability to put 

this child’s emotional and developmental needs first. The parents have failed to 
No. 47783-1-II

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consistently provide a safe home environment. Parental support from friends, 

family, or community members is not sufficient to overcome the parents’ 

deficiencies that affect their ability to provide adequate care and supervision for 

this child. 

CP at 834.

Regarding TK’s deficiencies, the juvenile court also found that he has a cognitive disorder 

impairing his ability to make decisions, prioritize, and understand consequences. He is paranoid 

and has a “limited abilit[y] to process basic information, and has a lack of knowledge of general 

principles of childrearing and basic developmental concepts.” CP at 830. These disorders and 

cognitive limits negatively impacted his parenting because he was rigid in his interactions with 

CH-K and IH, did not effectively communicate with IH or providers, did not consistently address 

his home environment, was compromised in his ability to manage stress, anger, and to deal with 

anxiety, and lacked insight into his and IH’s limitations, putting CH-K’s safety and healthy 

development at risk. Further, TK’s interactions with CH-K “negatively impact[ed] the child’s

emotional development,” and as he parented, he was unable to account for CH-K’s normal, ageappropriate behavior. CP at 831.

1. UNFITNESS PRESUMPTION

The first three elements of RCW 13.34.180(1) are undisputed and as addressed above, the 

remaining elements of RCW 13.34.180(d) through (f) were also proven by clear, cogent, and 

convincing evidence. Thus, an implicit finding of current parental unfitness may be made. K.N.J., 

171 Wn. 2d at 577. However, the parties’ arguments related to unfitness are addressed below. 

2. UNFITNESS AS NONCUSTODIAL PARENT NOT A NECESSARY FINDING

IH argues that the juvenile court did not have substantial evidence to “prove she was 

currently unfit to be a noncustodial parent.” Br. of Appellant at 20. 
No. 47783-1-II

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3. SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT IH WAS UNFIT

Even if we address IH’s arguments on the merits, substantial evidence supports the finding 

that IH is unfit. Service providers testified that despite services offered between 2009 and 2015, 

IH lacked the ability to emotionally connect with CH-K, she put CH-K into distressing situations, 

interacted with CH-K in age-inappropriate ways, failed to remedy the safety and sanitation hazards 

in the home, and stated and exhibited that she cannot parent two children at once. And from 2012 

to 2015, IH did not consistently progress with her services to remedy parental deficiencies and 

several of her service providers stated that CH-K should not be placed in her sole care. Thus, 

substantial evidence supports the juvenile court’s finding that at the time of dependency IH was

unfit to meet CH-K’s basic needs. 

4. SUBSTANTIAL EVIDENCE SUPPORTS FINDING THAT TK WAS UNFIT

TK argues substantial evidence does not support the juvenile court’s findings that he was 

unfit and its related findings, and he relies on A.B. for support. But TK’s arguments are 

unpersuasive. In A.B., this court stated that the existence of cognitive impairments is not proof 

that a parent is unfit unless the cognitive impairment directly impacts the ability to parent, and thus 

the question is whether the resulting parenting deficiencies can be corrected. 181 Wn. App. at 65. 

There, DSHS failed to prove that the mother was unfit because it failed to prove that it was highly 

probable that her parenting deficiencies rendered her unable to provide for her child’s basic needs.

A.B., 181 Wn. App. at 64-65. 

Here, unlike in A.B., the juvenile court did not rely solely on TK’s cognitive deficits, and 

substantial evidence supports the juvenile court’s findings that TK’s deficits rendered him unable 
No. 47783-1-II

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to provide for CH-K’s basic needs.8 The juvenile court relied on evidence that TK failed to provide 

a safe and nurturing home environment for CH-K on a consistent basis, that TK never recognized 

his or IH’s deficiencies, which was problematic because IH would be CH-K’s primary caretaker 

while he was at work, that TK could not handle the stress and tasks necessary to parent two children 

at once, and that neither parent had support sufficient to overcome their deficiencies. The juvenile 

court also relied on evidence that from 2012 to 2015, TK did not consistently progress with his 

services to remedy parental deficiencies, and his service providers stated that CH-K should not be 

placed in his sole care. Thus, the juvenile court’s finding that TK was unfit is supported by 

substantial evidence. 

Finally, contrary to TK’s arguments, the related findings detailing TK’s deficiencies were 

also supported by substantial evidence. O’Leary’s report and testimony from subsequent providers 

support the findings regarding TK’s cognitive disorder, the impediments it caused to his parenting,

and his paranoia. Service providers also testified that he lacked knowledge of parenting and 

developmental concepts, that he interacted in a rigid manner with CH-K and IH, that he did not 

communicate effectively with IH or providers, that he was compromised in his ability to manage 

stress, anger, and to deal with anxiety, that he lacked insight into his and IH’s limitations, and that 

his interactions with CH-K negatively impacted her development. 

 

8 TK points to evidence that his impairments and the home conditions posed no immediate or 

severe risk to CH-K’s safety, that he acted in a nurturing manner towards CH-K, that he helped IH 

interact appropriately with CH-K, that he functioned well and without conflict at work, and that 

while he did not acknowledge his parenting deficiencies at trial or to service providers, his actions 

to resolve them “offset” his words. But we do not weigh evidence on appeal. A.G., 155 Wn. App. 

at 588. Giving greater weight to other evidence rather than the evidence that TK emphasizes is 

not a juvenile court decision that we review. A.G., 155 Wn. App. at 588. 
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We conclude that because the six required factors were proved by clear, cogent, and 

convincing evidence, the juvenile court’s finding of unfitness is also implicitly supported by clear, 

cogent, and convincing evidence. 

F. BEST INTERESTS OF CH-K

Both parties challenge aspects of the juvenile court’s “best interest” of the child finding.

We disagree with the parties’ challenges. 

Although parents have a fundamental liberty interest in the care and custody of their 

children, the paramount consideration in a termination proceeding is the welfare of the children. 

In re Welfare of Young, 24 Wn. App. 392, 395, 600 P.2d 1312 (1979). 

The juvenile court has broad discretion to determine the best interests of the child and its 

decision is entitled to great deference. Young, 24 Wn. App. at 395. Where a parent has been 

unable to rehabilitate over a lengthy dependency period, a juvenile court is “‘fully justified’” in 

finding termination in the child’s best interests rather than “‘leaving [the child] in the limbo of 

foster care for an indefinite period while [the parent] sought to rehabilitate himself.’” T.R., 108 

Wn. App. at 167 (alterations in original) (quoting A.W., 53 Wn. App. at 33). The child’s right to 

basic nurturing includes the right to a safe, stable, and permanent home and a speedy resolution of 

the termination proceeding. RCW 13.34.020. 

Here, the juvenile court stated, 

[T]he parents are not currently fit to parent this child. The parents have failed to 

adequately provide a safe and nurturing environment for this child on a consistent 

and sustained basis. The parents have repeatedly demonstrated an inability to put 

this child’s emotional and developmental needs first. The parents have failed to 

consistently provide a safe home environment. Parental support from friends, 

family, or community members is not sufficient to overcome the parents’ 

deficiencies that affect their ability to provide adequate care and supervision for 

this child. 
No. 47783-1-II

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CP at 834. And

[this] court finds by a preponderance of the evidence that termination of the 

parent/child relationship is in the best interest of the child. Termination will allow 

the child, as soon as possible to enter into a stable family relationship where her 

individual needs can be met. 

CP at 834. 

IH argues that the juvenile court improperly conflated the best interest standard and that 

termination would help achieve permanent placement in the near future. First, contrary to IH’s 

argument, the juvenile court did not improperly conflate the best interest standard and that 

termination would help achieve permanent placement in the near future. Here, as discussed above, 

the juvenile court did not conflate the standards but instead made separate findings regarding 

impediments to CH-K obtaining permanency and CH-K’s best interests. IH’s argument fails.

TK argues that because “[DSHS] failed to establish each of the allegations under RCW 

13.34.180(1), however, the trial court’s ‘best interests’ determination was premature.” Br. in Supp. 

of Mot. for Accelerated Review at 48. After proving the elements of RCW 13.34.180, DSHS must 

then prove by a preponderance of the evidence that termination of parental rights is in the best 

interests of the child. RCW 13.34.190(1)(b); A.J.R., 78 Wn. App. at 228. Contrary to TK’s 

argument, the finding that termination is in CH-K’s best interests was not premature because as 

shown above, each factor to support termination was established by clear, cogent, and convincing 

evidence. Service providers who worked with TK and IH from 2009 to 2015 testified that the 

parents’ progress with services was stagnant or would regress and that they did not recommend 

either parent have sole responsibility for CH-K. 
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The juvenile court had substantial evidence before it to support a finding that termination 

was in CH-K’s best interests rather than leaving her in foster care for an indefinite period. T.R., 

108 Wn. App. at 167. We conclude that the parties’ arguments fail and that the juvenile court’s 

finding that termination was in CH-K’s best interests was supported by a preponderance of 

evidence.

II. NO DUE PROCESS VIOLATION

IH argues that the juvenile court violated her due process rights because the State had no 

compelling interest to support termination of her parental rights and termination was not the least 

restrictive alternative. We disagree.

The Fourteenth Amendment to the United States Constitution provides that no State shall 

“deprive any person of life, liberty, or property, without due process of law.” Parents have a 

fundamental liberty interest in the care, custody, and control of their children. Troxel v. Granville, 

530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Interference with this fundamental 

right is constitutional “‘only if the State can show that it has a compelling interest and such 

interference is narrowly drawn to meet the compelling state interest involved.’” In re Dependency 

of I.J.S., 128 Wn. App. 108, 116, 114 P.3d 1215 (2005) (quoting In re Custody of Smith, 137 

Wn.2d 1, 15, 969 P.2d 21 (1998), aff’d sub nom. Troxel, 527 U.S. 57). Consideration of whether 

an interference is narrowly drawn can include evaluation of whether a lawful alternative and less 

restrictive means could have been used. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 

n.6, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986). Establishing the RCW 13.34.180(1) termination 

factors, and factor (e) in particular, by clear, cogent, and convincing evidence also satisfies 
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constitutional due process for terminating a parent’s fundamental liberty interest. K.R., 128 Wn.2d 

at 142. 

A. COMPELLING STATE INTEREST

IH argues that the government has no compelling interest at stake because the parents do 

not pose an imminent risk or threat to CH-K’s welfare. We conclude that the State had a 

compelling interest. 

In a termination proceeding, the State has a compelling interest to protect and prevent harm 

to children and has an obligation to intervene. I.J.S., 128 Wn. App. at 116; see also Santosky v. 

Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). When parental actions or 

decisions seriously conflict with the physical or mental health of the child, the State has a parens 

patriae right and responsibility to intervene to protect the child. I.J.S., 128 Wn. App. at 116. 

Establishing the child is dependent under RCW 13.34.180(1)(a) and that it is unlikely conditions 

can be remedied so the child can be returned in the near future under RCW 13.34.180(1)(e) is 

equivalent to finding harm to the child. I.J.S., 128 Wn. App. at 118. 

Here, as stated above, that CH-K was found dependent under RCW 13.34.180(1)(a) is 

undisputed. And because substantial evidence supports the finding that it is unlikely conditions 

can be remedied so that CH-K can be returned in the near future under RCW 13.34.180(1)(e), harm 

to CH-K has been established and the State had a compelling interest to intervene. I.J.S., 128 Wn. 

App. at 118.
No. 47783-1-II

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Substantial evidence also supports the State’s compelling interest. Service providers 

testified that (1) the parents could not meet CH-K’s emotional needs or relate to her in a 

developmentally appropriate way, (2) CH-K was developmentally stunted by straddling two 

homes, (3) conditions in the home remained hazardous to CH-K’s safety, and (4) neither parent 

could provide sole care to CH-K. Thus, we conclude that IH’s and TK’s actions seriously 

conflict with the physical or mental health of the child such that the State had a compelling 

interest to intervene. I.J.S., 128 Wn. App. at 116. 

B. LEAST RESTRICTIVE MEANS

IH also argues that termination was not narrowly tailored where DSHS could have pursued 

the less restrictive alternatives of (1) prolonging dependency to offer continued services, (2) 

pursuing a dependency guardianship, or (3) a third party custody order. We disagree. 

Children have the right to basic nurture, which includes a speedy resolution of dependency 

proceedings. RCW 13.34.020. Thus, a petition for termination of parental rights must be filed 

whenever a child has been in foster care for 15 of the past 22 months unless compelling reasons 

excuse this requirement. RCW 13.34.145(1)(c). In 2010, the legislature created a more flexible 

alternative to parental termination—guardianship under RCW 13.36.040. R.H., 176 Wn. App. at

423. Evidence of the availability of a guardianship is material to whether the State can meet its 

burden to prove RCW 13.34.180(1)(f), but it is not necessary for the State to disprove the 

availability of a guardianship placement. R.H., 176 Wn. App. at 428. While recent case law does 

not appear to establish a requirement for parents to present evidence of a potential guardianship, 
No. 47783-1-II

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due process requires that parents have the ability to present all relevant evidence for the juvenile 

court to consider prior to terminating a parent’s rights; thus, presentation of evidence regarding a 

potential guardianship or third party custodian would be considered by the juvenile court if raised. 

See R.H., 176 Wn. App. at 429. 

Here, CH-K was in foster care for three years as of 2015. The termination trial was 

continued five times between 2013 and 2015 to allow TK and IH to try to progress through the use 

of state services. But the 2013 to 2015 service providers did not recommend that the parents even 

receive unsupervised visits and reported that the parents regressed such that it would be years still 

before CH-K could possibly be in their sole care. IH offers no compelling reasons why the 

pretermination period should have been further extended beyond the statutory period in light of 

this evidence. 

Additionally, the potential for guardianship placement or third party custody was never 

established by either parent at or before trial by testimony or petition. DSHS was not required to 

disprove the availability of a guardianship placement. R.H., 176 Wn. App. at 428. And IH makes 

no argument why the juvenile court would have a similar obligation to disprove the availability of 

a third party custodian. IH’s arguments that the State was required to pursue less restrictive means 

than termination fails. 

We conclude that the juvenile court’s findings were supported by substantial evidence and 

that constitutional due process was satisfied. K.R., 128 Wn.2d at 142. 
No. 47783-1-II

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We affirm the juvenile court’s order terminating the parties’ parental rights to CH-K. 

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

JOHANSON, J.

We concur:

BJORGEN, C.J.

MAXA, J.